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CBA Negotiations III: Why Can't We All Just...Get Along?

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Old
12-16-2012, 07:17 AM
  #601
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Originally Posted by Flyerfan808 View Post
Especially when you have NHLers taking to twitter to voice their frustrations so liberally, I'm looking directly at Upshall, Carle, Couture, and some edgy comments made by Ryan Miller:



http://prohockeytalk.nbcsports.com/2...uld-decertify/
It isn't even that. It is more simple than that. An example of a conspiracy to restrain trade is the NHL draft. With a union it doesn't matter, the Draft is agreed to and it is fine. Take away the union and you have 30 teams agreeing to let one team pick a player first and so forth on so on. It would be similar to all the best law firms agreeing to let the firm with the worst previous year get first dibs on the top graduates. Now I haven't seen the documents still and I don't know exactly what they are claiming, but this is just a very simple example of what a conspiracy to restrain trade is.

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12-16-2012, 08:02 AM
  #602
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Originally Posted by DrinkFightFlyers View Post
It isn't even that. It is more simple than that. An example of a conspiracy to restrain trade is the NHL draft. With a union it doesn't matter, the Draft is agreed to and it is fine. Take away the union and you have 30 teams agreeing to let one team pick a player first and so forth on so on. It would be similar to all the best law firms agreeing to let the firm with the worst previous year get first dibs on the top graduates. Now I haven't seen the documents still and I don't know exactly what they are claiming, but this is just a very simple example of what a conspiracy to restrain trade is.
I believe that Congress would give the NHL an antitrust exemption before any doomsday scenarios would happen.

It seems as though Fehr's end game is to use the NHL as a test case for the other major sports.

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12-16-2012, 08:09 AM
  #603
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Originally Posted by DrinkFightFlyers View Post
It isn't even that. It is more simple than that. An example of a conspiracy to restrain trade is the NHL draft. With a union it doesn't matter, the Draft is agreed to and it is fine. Take away the union and you have 30 teams agreeing to let one team pick a player first and so forth on so on. It would be similar to all the best law firms agreeing to let the firm with the worst previous year get first dibs on the top graduates. Now I haven't seen the documents still and I don't know exactly what they are claiming, but this is just a very simple example of what a conspiracy to restrain trade is.
S-t-r-e-t-c-h.

Looking over the Sherman Act (a little) -- part one is (and the way courts have handled it) basically to constrain plausible (it must be plausible, not merely suggested or conceived) conspiracies to constrain one business against others, because it is at the core anti-monopoly legislation (which has been under fire for being dumb, which it is-- even Greenspan cooked it). The NHL isn't a true monopoly.

Moreover, since the 70s, courts have put much more of the onus on the plaintiffs.

Anyone can sue anyone, but the NHL simply has to show that the draft is simply part of their business model to fairly divide talent. The draft makes sense. It isn't designed as some anti-compete in the marketplace method.

I haven't read the documents filed either, so I'm curious what their real grounds are for believing the Sherman Act will help them. I'm sure they have a legitimate angle, and they will hire a good lawyer.

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12-16-2012, 09:55 AM
  #604
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Originally Posted by Snotbubbles View Post
I believe that Congress would give the NHL an antitrust exemption before any doomsday scenarios would happen.

It seems as though Fehr's end game is to use the NHL as a test case for the other major sports.
That is highly unlikely and inaccurate. Other sports have been sued in anti-trust and have tried to claim an exemption, Congress has not intervened there and I don't see why they will intervene here. There is a baseball exemption that stems from a ridiculous decision in the 20's (maybe even earlier, can't remember exactly) and was curtailed by the Curt Flood Act, giving MLB players the same rights as other athletes in an anti-trust context, although not completely eliminating the baseball exemption.

It is likely a bargaining tactic, because if the NHL loses, they will have to pay triple the damages. No matter how convinced the NHL is they will win, that is a pretty big risk to take. I don't think this saves the season, but I also don't think the lawsuit ever reaches the merits.

But again, I have to say that I have not seen any of the documents so they may not even be suing under the Sherman Act. This is just what I am assuming that is going on, or will go on if the Union actually decertifies and files a lawsuit.

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12-16-2012, 10:02 AM
  #605
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Originally Posted by DownieFaceSoftener View Post
S-t-r-e-t-c-h.

Looking over the Sherman Act (a little) -- part one is (and the way courts have handled it) basically to constrain plausible (it must be plausible, not merely suggested or conceived) conspiracies to constrain one business against others, because it is at the core anti-monopoly legislation (which has been under fire for being dumb, which it is-- even Greenspan cooked it). The NHL isn't a true monopoly.
Not a stretch. A restraint of trade under Section 1 has nothing to do with monopolies. You can have a Sherman 1 violation without any monopoly.

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Moreover, since the 70s, courts have put much more of the onus on the plaintiffs.

Anyone can sue anyone, but the NHL simply has to show that the draft is simply part of their business model to fairly divide talent. The draft makes sense. It isn't designed as some anti-compete in the marketplace method.
This is incorrect. I'm not sure where you are getting your information, but a restraint of trade is a restraint of trade. It doesn't matter if it is part of a business model. It doesn't matter if it is not designed to stifle competition. If it restrains trade (i.e. by several companies agreeing to limit where someone can work and how much they will be paid) then it is a violation.

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I haven't read the documents filed either, so I'm curious what their real grounds are for believing the Sherman Act will help them. I'm sure they have a legitimate angle, and they will hire a good lawyer.
Yeah I don't know exactly what they are claiming either. The draft is just a rudimentary example to illustrate that they will likely not be suing under the monopoly provisions of the act, but rather the restraint of trade provisions, as most other lawsuits brought in the sports context have been brought.

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12-16-2012, 11:35 AM
  #606
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Originally Posted by DrinkFightFlyers View Post
Not a stretch. A restraint of trade under Section 1 has nothing to do with monopolies. You can have a Sherman 1 violation without any monopoly.
You can, but that's ignoring the spirit of the document. Monopolies / trusts caused the fear that spurred the Act. The reason it is important is because even if they don't file under monopoly, the NHL is going to say: "Listen, we're not a monopoly. How are we restraining their trade? This is global economy. Go play in Russia."

The players will have to make a case that their contracts not being honored is restraining their trade or that they have some control over their trade in North America.

The classic example of the Sugar Co. owning 98% of the sugar market could legitimately restrain workers by blacklisting them. That's not the case in the hockey world.

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This is incorrect. I'm not sure where you are getting your information, but a restraint of trade is a restraint of trade. It doesn't matter if it is part of a business model. It doesn't matter if it is not designed to stifle competition. If it restrains trade (i.e. by several companies agreeing to limit where someone can work and how much they will be paid) then it is a violation.
It matters because sports is a specialized field. They have a way of explaining it away. Saying: "restraint of trade is a restraint of trade." doesn't mean anything. There are instances wherein restraints of trade haven't mattered: Such as if you're being restrained from trade halfway across the world in 1905-- no one cares. You aren't going there. It may be illegal, it might have to be omitted, but there is precendent for making common sense judgments -- in the history of the act it has happened. Calling the draft a restraint is a stretch. The draft is a good thing-- and no one cares.

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12-16-2012, 03:03 PM
  #607
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Originally Posted by DownieFaceSoftener View Post
You can, but that's ignoring the spirit of the document. Monopolies / trusts caused the fear that spurred the Act. The reason it is important is because even if they don't file under monopoly, the NHL is going to say: "Listen, we're not a monopoly. How are we restraining their trade? This is global economy. Go play in Russia."
It is clear form this response that you do not understand how the Sherman Act works. "The spirit of the document" means nothing. The Act is a Federal Statute. If you violate one part of the Act, you are in violation. You can violate the Act by conspiring to restrain trade, entering into contracts in restrain of trade, etc. This has nothing to do with monopolies. Here is the exact text of the Act:

Quote:
§ 1. Trusts, etc., in restraint of trade illegal; penalty

Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $ 100,000,000 if a corporation, or, if any other person, $ 1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.
As you can see there is no mention of monopolies. You and I could conspire to restrain trade and be in violation of the act and subject to its penalties. The NHL cannot simply say that it is a global economny and go play in Russia. That is not how it works. What it appears you might be referring to (either directly, or unbeknownst to you) is the "single entity theory," wherein a sports league argues that it cannot be in violation of the act because it is a single entity, so it cannot conspire or enter into a contract with itself. This defense, has been put forth and the court has never accepted it. Any league that has tried to use this as a defense has failed, and there is no reason why the NHL would be different. There is an anti-trust exemption for major league baseball stemming from a ridiculous decision in the 1920s stating that baseball is not interstate commerce so it cannot violate the act. This exemption exists in some respects today, but the Curt Flood Act has chipped away at it.

Quote:
The players will have to make a case that their contracts not being honored is restraining their trade or that they have some control over their trade in North America.
It all depends on what the players are claiming. Whatever they are claiming they will have to show it is in violation of the Act.

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The classic example of the Sugar Co. owning 98% of the sugar market could legitimately restrain workers by blacklisting them. That's not the case in the hockey world.
Actually, a classic example is the draft. This is the definition of a restraint of trade. 30 organizations get together and agree who gets to sign what players and how much money they will be able to make. If there is a union in place, then this is not an issue. But, when there is no union, this becomes a blatant restraint of trade. Yes, it is beneficial to the teams, but it is clearly restraining the players.


Quote:
It matters because sports is a specialized field. They have a way of explaining it away. Saying: "restraint of trade is a restraint of trade." doesn't mean anything. There are instances wherein restraints of trade haven't mattered: Such as if you're being restrained from trade halfway across the world in 1905-- no one cares. You aren't going there. It may be illegal, it might have to be omitted, but there is precendent for making common sense judgments -- in the history of the act it has happened. Calling the draft a restraint is a stretch. The draft is a good thing-- and no one cares.
No it doesn't matter. The act is effective across the board. There are two exemptions in this context, a labor exemption (which is not applicable when there is no union) or the baseball exemption. That's it. The NHL is not the MLB. No other league that has tried to get under the baseball exemption has succeeded. Look at the caselaw regarding restraint of trade and sports leagues and you will see. The draft is absolutely a good thing. But without a union it is a violation of the Sherman Act.

I don't really want to hijack this thread anymore, but if you want to PM me I will give some background on the Sherman Act and its application to sports.

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12-16-2012, 05:07 PM
  #608
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Originally Posted by DownieFaceSoftener View Post
S-t-r-e-t-c-h
Stretch? That's more like a slam dunk. Things like the draft and restricted free agency seem perfectly quaint and mundane from the perspective of North American pro sports, but within commerce at large, they are extremely peculiar.

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12-16-2012, 05:11 PM
  #609
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http://sports.nationalpost.com/2012/...establishment/

Locked out… of a restaurant? Joffrey Lupul says Leafs barred from making reservations at Toronto establishment

Quote:
Papers have been filed in court, accusations have been made and insults have been hurled from both sides, but on Sunday, it appeared the National Hockey League’s lockout took a very personal turn for one member of the Toronto Maple Leafs.

Joffrey Lupul could not make a restaurant reservation.

@JLupul
.@realsports is not allowed to take reservations from Leafs players during the lockout but will continue selling our jerseys for $300 a pop—
Joffrey Lupul (@JLupul) December 16, 2012
16 Dec 12
Real Sports is the popular team-created establishment next to the Air Canada Centre, with a giant television screen on one wall, smaller screens throughout and an exclusive upper deck where Leafs players can typically enjoy a more rarified air during busy periods. The lockout, it would appear, has denied them that access.

Kevin Weekes

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@JLupul @RealSports #Truth
16 Dec 12 ReplyRetweetFavorite
Leafs forward James van Riemsdyk, who was acquired in a trade with Philadelphia in June, initially tweeted in support of Lupul — writing “same thing happened to me a month ago #amateurhour” — before that response was removed from his feed.

A representative with Maple Leaf Sports & Entertainment declined comment on behalf of the company, which owns the Leafs, as well as the restaurant.

According to The Canadian Press, members of the union were expected to begin voting to determine whether they will give their 30-member executive board the authority to file a disclaimer of interest — or, in plain speak, to dissolve the union.

The NHL filed a pre-emptive legal strike against the possibility of a disclaimer on Friday. Read about it here.

Later in the day, Lupul returned to Twitter:

Joffrey Lupul

@JLupul
In hindsight twitter was probably not the right place to voice my displeasure w @RealSports. That's not why I use twitter. Was just rattled

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12-16-2012, 05:28 PM
  #610
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Leafs' owners are pigs. It's bad enough people who work at restaurants in the area of the arena are being hit very hard by the lockout but now they're keeping guys out of there? Way to look even more childish!

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12-16-2012, 05:31 PM
  #611
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Originally Posted by MsWoof View Post
Leafs' owners are pigs. It's bad enough people who work at restaurants in the area of the arena are being hit very hard by the lockout but now they're keeping guys out of there? Way to look even more childish!
They aren't allowed to interact with them. Yet they are pigs for not interacting with them?

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12-16-2012, 05:43 PM
  #612
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They aren't allowed to interact with them. Yet they are pigs for not interacting with them?
So with that theory, since Rogers and Bell own the Leafs now, do all the players have to use a new cell phone provider? It's absolutely childish and they look like fools for doing this. It's not like they're going to walk in there and Burke is going to be at the bar eating nachos.

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12-16-2012, 05:57 PM
  #613
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So with that theory, since Rogers and Bell own the Leafs now, do all the players have to use a new cell phone provider? It's absolutely childish and they look like fools for doing this. It's not like they're going to walk in there and Burke is going to be at the bar eating nachos.
Because you and the players know burke's day plans?

And the childish ones are the players whining about it on twitter

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12-16-2012, 06:11 PM
  #614
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Originally Posted by krishna View Post
because you and the players know burke's day plans?

and the childish ones are the players whining about it on twitter
qft.

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12-16-2012, 07:07 PM
  #615
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Why cant they just give us hockey, that is where the business is made from afterall

So mad at both owners and players, just get it done and drop the puck!

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12-16-2012, 07:10 PM
  #616
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Originally Posted by MsWoof View Post
So with that theory, since Rogers and Bell own the Leafs now, do all the players have to use a new cell phone provider? It's absolutely childish and they look like fools for doing this. It's not like they're going to walk in there and Burke is going to be at the bar eating nachos.
Since Comcast owns the Flyers do the players now have to change their cable providers? This whole thing is turning into the biggest joke foisted on sports fans anywhere. Who makes the decision that a locked out employee cannot eat or drink at an establishment which is part of the group which owns the employee's workplace but which has nothing to do with the employee's work? If they do settle in the near future, I can't believe there won't be a poisoned workplace for some time.

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12-16-2012, 08:27 PM
  #617
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And the childish ones are the players whining about it on twitter
Eh, come on, that's what twitter is for, expressing random short thoughts. And I don't see why a player would get locked out of a restaurant, either. This isn't about interacting with them, because a player eating at a restaurant isn't an interaction with the owner. Not in my world, at least. I don't see a single positive thing that could come out of such a policy, all it does is irritates people trying to make a reservation there.

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12-16-2012, 08:48 PM
  #618
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I'm not buying this... How hungry do you have to be to walk into your bosses restaurant inside of the Air Canada Centre (your bosses building) after you've been locked out? Lupul is a drama queen and clearly there to stir up ****... WTF did he think would happen... find a different restaurant.

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12-16-2012, 09:31 PM
  #619
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we created this mess by being hardcore hockey fans. These guys need to act like they've been there before. they have no idea about business or what has created the money that their fighting over. If the KHL could put some damn ***** in the seats this would be over all ready. The players would just say screw it. Their all losers....but bettman's just SO hate able. I love hatin that creepy little bastid.

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12-16-2012, 10:45 PM
  #620
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I'm not buying this... How hungry do you have to be to walk into your bosses restaurant inside of the Air Canada Centre (your bosses building) after you've been locked out? Lupul is a drama queen and clearly there to stir up ****... WTF did he think would happen... find a different restaurant.
JvR said the same thing happened to him and Kevin Weekes backed both of them up. It's absolutely ridiculous that they aren't allowed to eat there.

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12-16-2012, 10:51 PM
  #621
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JvR said the same thing happened to him and Kevin Weekes backed both of them up. It's absolutely ridiculous that they aren't allowed to eat there.
Same thing happened to Ron Burgundy:



I'm not surprised they didn't let JVR in either, because I'm sure the same rule applies to every player in the NHL At least until the legal proceedings between the NHL and the NHLPA are over... keep in mind the NHL has 2 lawsuits against the NHLPA... kindly find another restaurant.


Last edited by Flyerfan808: 12-17-2012 at 02:34 AM.
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12-17-2012, 10:19 AM
  #622
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Originally Posted by DrinkFightFlyers View Post
"The spirit of the document" means nothing. The Act is a Federal Statute. If you violate one part of the Act, you are in violation. You can violate the Act by conspiring to restrain trade, entering into contracts in restrain of trade, etc. This has nothing to do with monopolies. Here is the exact text of the Act:
It does mean something. Judges would understand that comment. Don't confuse recently being acquired with this Act with not being familiar with the legal system. The Judges, Lawyers, and everyone involved know the act stems from anti-trust / anti monopoly legislation and will be seen in that context. It's inescapable, even if it isn't logically proscribed in the Act 1 itself. I've read the Act. It's not confusing. It has implications for monopolies as well. For if the way of dodging Act 1 is by treating teams as a single entity under an umbrella company (the NHL) then a case can be made for the NHL being a monopoly, which would bring in Sherman Act 2.

Moreover, due to my job, I deal with two federal Acts each and every day and "being in violation" is much more grey then you seem to be letting on. Thus, courts or other review panels (PHS, APHIS, USDA, OSHA).

Quote:
"single entity theory," wherein a sports league argues that it cannot be in violation of the act because it is a single entity, so it cannot conspire or enter into a contract with itself. This defense, has been put forth and the court has never accepted it. Any league that has tried to use this as a defense has failed, and there is no reason why the NHL would be different.
It's not the nonstarter you seem to think it is. Look at the NFL recently. The right lawyers could get it done.

"After allowing the case to proceed into the discovery stage, Judge Moran of the Northern District of Illinois granted summary judgment in favor of the NFL clubs, ruling that the NFL acted as a single entity for purposes of trademark licensing and thus was exempt from Section 1 of the Sherman Act. The Seventh Circuit Court of Appeals affirmed, holding that whether a sports league should be treated as a single entity is a matter to be decided “one league at a time” and “one facet of a league at a time.”

http://abovethelaw.com/2010/05/sport...single-entity/

"Although handicapping a decision in the high court can be perilous, Supreme Court scholars agree that Roberts, Samuel Alito, Clarence Thomas and Antonin Scalia are likely supporters of the NFL's position. Stephen Breyer could easily join the pro-business justices based on his opinion in an NFL case in 1996 in which he hammered the union."

http://sports.espn.go.com/espn/columns/story?id=4336261

Remember when I implied that who was judging would be key?

Single Entity has also been admitted (during a case with the NBA) to be a legitimate possibility if teams are thought of as franchises that compete with each other, but are under the same individuated company (think McDonalds) with the commerce being "NBA basketball" but the ruling decided on supporting the Sherman Act instead.

Quote:
The draft.
Players sign up for the draft. It's not the best example. A better example would be without consent (re: Sugar Monopolies controlling 98% of the market and blacklisting people).

Quote:
I don't really want to hijack this thread anymore, but if you want to PM me I will give some background on the Sherman Act and its application to sports.
It's CBA related. I can space out my responses.

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12-17-2012, 10:27 AM
  #623
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Originally Posted by Flyerfan808 View Post
I'm not buying this... How hungry do you have to be to walk into your bosses restaurant inside of the Air Canada Centre (your bosses building) after you've been locked out? Lupul is a drama queen and clearly there to stir up ****... WTF did he think would happen... find a different restaurant.
If it is part of the stadium then the players absolutely shouldn't be allowed in. That is like them whining on twitter about not being able to use their locker in the dressing room during the lockout... I mean, it is THEIR locker, after all!

Lupul has been a drama queen from the start. I give him props for being one of the more eloquent ones from the players' side at the very least, though.

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12-17-2012, 10:34 AM
  #624
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Last edited by Beef Invictus: 12-17-2012 at 11:29 AM. Reason: fixing link
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12-17-2012, 11:51 AM
  #625
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Lupul has been a drama queen from the start. I give him props for being one of the more eloquent ones from the players' side at the very least, though.
He is also a little potshotting twerp....

His shot at the Flyers with respect to the Carter and Richards trades when LA won the cup were petty. Him and Carcillo are bitter drama queens no doubt..

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